BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110000060 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* an upgrade of his under honorable conditions discharge to an honorable discharge
* restoration of his rank/grade of specialist four (SP4)/E-4

2.  He states the reason for his discharge was his inability to cope with the military lifestyle.  However, his military service records show he received several commendations and achievement certificates during his active duty service.

3.  He provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three certificates of achievement
* three letters of recommendation
* two certificates of training
* a letter of appreciation
* an Army Good Conduct Medal Certificate
* a promotion certificate

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 8 November 1978.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 16D (Hawk Missile Crewman Member).  He reenlisted on 8 May 1981 for a period of 4 years.  The highest rank/grade he attained in was SP4/E-4.

3.  His military service records show he was awarded numerous achievement certificates and letters of commendation during his service.  He was specifically recognized for outstanding performance, achieving excellence, and completing various training courses.

4.  On 18 September 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order and for being disrespectful towards a noncommissioned officer (NCO).

5.  His records reveal a disciplinary history that includes multiple negative counseling statements on the following dates:

* 6 May 1983 for being disrespectful towards an NCO
* 6 May 1983 for failing to obey a lawful order
* 13 July 1983 for failing to be at his appointed place of duty and having a negative attitude

6.  On 5 July 1983, the applicant again accepted NJP under the provisions of Article 15 UCMJ for assaulting a Soldier by grabbing him with his hands and shoving him into a guard shack.

7.  On 3 August 1983, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty, disobeying a lawful order from an NCO, and being disrespectful towards an NCO.  His punishment consisted of a reduction to private first class (PFC)/E-3 and 14 days of extra duty and restriction.

8.  On 30 August 1983, the applicant's commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  The commander cited the following reasons:  the applicant had been counseled concerning his deficient areas, but failed to elicit a positive change; the applicant received three Article 15's; and the applicant's continued disregard towards military authority.

9.  His letter of notification and legal counsel statement are not available in his military service records for review; however, he did indicate in a memorandum that he did not wish a make statement on his behalf.

10.  On 6 September 1983, the appropriate authority approved the discharge recommendation, waived a rehabilitative transfer, and directed that his discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  On 16 September 1983, he was accordingly discharged.

11.  His DD Form 214 shows he completed 4 years, 10 months, and 9 days of creditable active service.  Additionally, this form shows:

* item 4a (Grade, Rate or Rank) – PFC
* item 4b (Pay Grade) – E-3
* item 12h (Effective Date of Pay Grade) – 3 August 1983
* item 28 (Narrative and Reason for Separation) – unsatisfactory performance

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 provides that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at the time of separation and are obtained from the Soldier's records (promotion or reduction orders) and item 12h shows the effective date of grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded and his rank of SP4 should be restored.  He offers his service achievements and recommendations as evidence to show his reason for separation is misleading.  However, good service achievements and recommendations alone are not sufficient to mitigate his indiscipline and unsatisfactory performance and are not a basis for upgrading a properly-issued discharge.

2.  The evidence of record shows he received three Article 15's for failing to be at his appointed place of duty, disobeying a lawful order of an NCO, being disrespectful towards an NCO, assaulting a fellow Soldier, and for unsatisfactory performance.  His last Article 15 resulted in his reduction to PFC/E-3.

3.  Accordingly, his chain of command initiated separation action against him.  It appears all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable discharge.

4.  With respect to his rank/grade, the evidence of record shows he was reduced to PFC/E-3 after accepting NJP on 3 August 1983.  He held this rank/grade until his discharge on 16 September 1983.  There is no evidence he was advanced to SP4/E-4 subsequent to his reduction.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  ___x_____  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110000060



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ABCMR Record of Proceedings (cont)                                         AR20110000060



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